United States v. Ruiz

United States District Court, D. Arizona

March 15, 2017

United States of America, Plaintiff,v.Jose Antonio Ruiz, Defendant.

ORDER

Cindy
K. Jorgenson United States District Judge

Pending
before the Court is the Motion to Suppress (Doc. 34) filed by
Jose Antonio Ruiz (“Ruiz”). A Response (Doc. 37)
and a Reply (Doc. 38) have been filed. Evidence and argument
were presented to the Court on February 14 and 15, 2017.
Additionally, evidence has previously been presented in this
case on October 25, 2017.

I.
Factual and Procedural History

A.
Summary of Testimony of Agent Delfina Scarlet Cruz

Customs
and Border Patrol (“CBP”) Agent Delfina Scarlet
Cruz (“Agent Cruz”), who has been a CBP agent for
11 years, is stationed at the Nogales Border Patrol station.
She is sometimes assigned to checkpoint duty. On checkpoint
duty, she works at the I-19 checkpoint just north of Tubac,
Arizona.[1]

When
assigned to the primary area of the I-19 checkpoint, Agent
Cruz stands in the traffic lanes as the vehicles approach and
interacts with the people in the vehicles. She has been
trained to observe the body language of the drivers/occupants
traveling through the checkpoint (e.g., sweaty, grabbing the
steering wheel, evading eye contact). Her duties at the
primary area include establishing the immigration status of
the people in the vehicles. For those persons Agent Cruz
recognizes (e.g., commuters), she does not ask them if they
are United States citizens. The secondary area is off to the
side for referral of vehicles that need further inspection or
for follow-up questioning. The secondary inspection area is
used to prevent backing up the traffic, which may create a
hazard; referral to secondary does not necessarily mean that
someone is in trouble - it is just to keep everything safe.

At
approximately 9:50 a.m. on December 14, 2015, Agent Cruz was
stationed at the I-19 checkpoint, assigned to the primary
area. She remembers a black Tundra following the speed
cautions traveling towards her.[2] She looked to CBP Canine Agent
Ned Phillip Ewing (“Agent Ewing”) as the vehicle
passed him and he gave Agent Cruz a hand signal which
indicated the vehicle needed to be inspected at secondary.
She was paying attention to the handler and does not recall
seeing the canine doing anything. When the Tundra pulled up
to Agent Cruz, she asked the driver, Jose Antonio Ruiz
(“Ruiz”), to please move to the secondary
inspection area. Ruiz complied.

Agent
Cruz has not received any training on how to recognize canine
cues, but her interaction with fellow agents has allowed her
recognize canine cues. It is not her job to pay attention to
the canine; Agent Cruz pays attention to the canine handler.

Agent
Cruz did not keep any notes regarding this encounter. She
believes the United States Attorney's office asked her to
write a report; the agent drafted her report regarding this
incident on February 11, 2016. Between December 14, 2015, and
February 11, 2016, Agent Cruz was assigned to one of the
primary traffic lanes of the I-19 checkpoint several times
per week. A large percentage of the vehicles she sees while
assigned there are trucks. During four hours assigned to the
primary area out of a ten hour shift, the agent sends
approximately 12 cars a day to the secondary inspection area.
Agent Cruz did not dispute a question that concluded that she
has sent hundreds, if not thousands of cars, to the secondary
inspection area. Agent Cruz does remember another car, a gold
Nissan, for which she was the primary agent and a case
resulted.

She
remembers interacting with Drug Enforcement Administration
(“DEA”) “BANG” agents on that day
which is why, along with the large quantity of cocaine, this
case stands out to her.

B.
Summary of Testimony of Officer Bevan Anderson

Immigration
Customs Enforcement (“ICE”) Officer Bevan
Anderson (“Officer Anderson”) had been an agent
with Border Patrol for over five years. While with the Border
Patrol, he usually worked at the I-19 checkpoint. When
assigned to the primary area, he was responsible for asking
the country of citizenship for the persons who traveled
through the checkpoint. When assigned to the secondary
inspection area, he would inspect the vehicles, question
people, and verify immigration documents; this included
vehicles with a lot of people in them (e.g., large vans,
buses). Officer Anderson was also assigned to operate a ZBF,
which is an x-ray van. Using the ZBF, Officer Anderson finds
organic material - he has found illegal narcotics, food,
water, chemicals, and humans.

On
December 14, 2015, Agent Ewing used his service radio to
indicate the vehicle was being sent to secondary because the
canine had alerted to it. Officer Anderson does not recall
having any interaction with Ruiz; he believes he would recall
if there had been any interaction. Officer Anderson recalls
scanning a black pickup on December 14, 2015. He recalls this
because it was his last day or second to the last day on
shift with Border Patrol.

Officer
Anderson realized he had scanned a similar truck a couple of
days prior to December 14, 2015, and noticed there was a
difference between the two vehicles.[3] At that point, Officer
Anderson had been working secondary for about two and a half
years. In his experience, most anomalies turn out to be
illegal narcotics. Officer Anderson further noticed multiple
packages secreted on the driver's side and on the
passenger side.[4] He believes the time to take the truck to
the scanning area, scanning the truck, and returning the
truck to back under the checkpoint awning should have taken
less than five minutes. Officer Anderson informed Agent Ewing
that he saw anomalies in the “beds.”

C.
Summary of Testimony of Agent Ned Ewing

Agent
Ewing has worked with Border Patrol for about 12 and a half
years, off and on since 2000. He is a canine handler; canine
Niky is assigned to Agent Ewing. Agent Ewing graduated from
the canine academy, which lasted about five or six months, in
2009 and Niky has been with him ever since. As a CBP agent,
Agent Ewing also has experience with checkpoint primary,
checkpoint secondary, line watch, detention, and casework
duties.

The
canine academy program Agent Ewing participated in lasted
seven or eight weeks. The program included two weeks of
classroom, assignment of a canine, approximately five weeks
of working with green sheets (performance canine handler
detection score sheets) with Niky, learning other material,
and a final exam. Prior to Niky's assignment to Agent
Ewing, Niky was selection tested and worked with instructors
at pre-training for approximately seven weeks. The green
sheets have to be passed by the team with a score below 3.55.
A three is average, a two is above average, and a one is
excellent. After the final exam was taken, Agent Ewing and
Niky also went through a one week certification testing
process. Certification is conducted by either Border Patrol
agents or contract instructors. Yellow sheets (detection
canine combined performance review), which is a quarterly
evaluation of the combined green sheets and an evaluation of
the instructor, are also utilized. When Agent Ewing is given
a search area, Niky stays in one location while Agent Ewing
walks the search area to look for hazards, safety issues, and
to get an idea how the area should be searched. No one talks
to Agent Ewing during this time; usually the instructor stays
with Niky. Agent Ewing is not advised of where the search
items are located; it would defeat the purpose if he was
pre-advised of their locations. The instructor knows the
location(s) of the source of the odors.

Every
two weeks, Agent Ewing and Niky complete eight hours of green
sheets. They are evaluated quarterly with the yellow sheets.
Agent Ewing and Niky are required to be recertified
annually.[5] Niky has never failed a green sheet, a
yellow sheet, or a certification, although there have been
periods where Niky has been sick or having “off
days.”

Niky is
trained to detect concealed humans and the odors of
marijuana, heroin, cocaine, methamphetamine and their
derivatives.[6] The daily assignment of Agent Ewing and
Niky is the I-19 checkpoint. However, they also take calls
out in the field. In the eight year period Agent Ewing and
Niky have been assigned to the I-19 checkpoint, Niky has
detected concealed humans, marijuana, methamphetamine,
heroin, and cocaine at the checkpoint and in the field. Niky
will “alert” (change in body posture, increased
respiration) when he first encounters an odor he has been
trained to detect. However, these body changes may be the
result of interest in other dogs or food. Niky will provide
an “indication” (sit) when he locates the source
of a trained odor. If Agent Ewing verifies an alert or an
indication, he provides a reward to Niky.

Safety
is always a concern while working the I-19 checkpoint. There
are signs reducing the 75 mile an hour speed limit, but some
people do not slow down. Additionally, some drivers are
distracted and there is traffic flowing on the southbound
lanes.

Agent
Ewing and Niky were assigned traffic check at the I-19
checkpoint on December 14, 2015. Agent Ewing worked the
primary area with Niky, allowing him to work freely in the
two lanes of traffic with the vehicles passing them. It was
an overcast day with a northbound wind. The northbound wind
at the I-19 checkpoint usually causes a trained odor to come
towards a detection canine. On that day, two lanes of traffic
were open. While Agent Ewing and Niky were between the two
lanes a black Tundra approached.[7] As the middle to back part
of the truck passed them, Niky alerted - his body posture
changed, he began sniffing very intensely tying to trace the
odor to its source.

Agent
Ewing asked Agent Cruz, who was in the far west lane, via the
radio to hold traffic. As it was a windy day and Niky had
alerted, Agent Ewing wanted to determine the source of the
alert. He did not believe Agent Cruz had heard him, so he
walked around the back of the truck, made eye contact with
Agent Cruz, and made a fist (which means to hold traffic).
Agent Ewing then made a number two signal (holding up two
fingers) to Agent Cruz, indicating to Agent Cruz to send the
vehicle to the secondary inspection area because of a canine
alert. Niky did not make an active indication while in the
primary area. Agent Ewing also testified that Niky did not
bark while in the primary area.

Approximately
three to five minutes later, Agent Ewing went to secondary.
This affords an x-ray operator time to conduct an x-ray of
the vehicle. Agent Ewing usually walks to the area to afford
Niky an opportunity to again sniff the air of the vehicle.
Ruiz was in the waiting area.[8]

Agent
Ewing and Niky did a secondary walk around the Tundra. Agent
Ewing noticed the back wheel well on the passenger side
appeared to have some after-market tampering that was not
consistent with any other Tundra he had ever seen. Niky again
alerted to the truck; although he did not indicate, Niky was
“all over” the bed of the truck. The wind,
temperature, and humidity impact a canine and his detection
abilities. Officer Anderson advised Agent Ewing of anomalies
observed from the x-ray. Agent Ewing kenneled Niky. Agent
Ewing and Officer Anderson decided to place the Tundra under
the canopy near the primary inspection area to further
inspect and search the Tundra.

Another
agent found access to a compartment. After the packages had
been removed from the Tundra and the content was tested and
verified, Agent Ewing brought Niky back to the odor. Niky
alerted to the back, middle part of the truck. Agent Ewing
rewarded him. Agent Ewing also testified that Niky barked at
the end, which is an aggressive indicator which is not
trained. Agent Ewing's report did not include reference
to a reward, an indication, or a bark. Over 53 pounds of
cocaine was seized.

Some of
the reviews, called green sheets, and yellow sheets were
admitted into evidence. See Ex. 1. They include
separate scores and instructor comments for both Agent Ewing
and Niky. Agent Ewing did receive one 4 regarding his voice
tone. However, Agent Ewing also scored perfect on ritual and
received a lot of 2s. In over 30 evaluations referred to by
the Assistant United States Attorney (“AUSA”)
that included 132 separate location evaluations, Agent Ewing
only received the one 4 and Niky had only one 4 for control
and one 4 for indication.

If a
canine team has a continual problem, the instructors would
work with the canine handler and the canine to rectify the
problem. If the problem is not resolved, they would go
through another week of training and green sheets to work on
just that problem. Remedial training consists of 40 hours.
The canine team would retain its certification, but would be
assigned to the canine office for a week. If the problem
persists, certification may not be reissued.

D.
Summary of Testimony of Agent Alex Markle

Border
Patrol Agent Alex Markle (“Agent Markle”) joined
the Border Patrol in January of 1998. He was selected to be a
canine handler in 2005. In 2008 he became an instructor with
the Border Patrol. In 2015, Agent Markle was promoted to
Course Developer Instructor Supervisory Border Patrol Agent
at the Canine Center in Front Royal, Virginia, for the CBP
Canine Program; he currently remains in that position. Agent
Markle has been certified previously as a canine handler for
other government agencies. Additionally, he has a law degree
and was a Special Assistant United States Attorney from
2013-2015. Agent Markle has not received any education
outside of his CBP experience as to canine physiology, canine
neurophysiology, or veterinarian medicine.

Agent
Markle's current duties include the selection and testing
of new canines for purchase by the CBP Canine Program. He
also evaluates canines and provides initial training of
canines. Agent Markle trains students with the canines in a
seven week program as well as training instructor students in
a 12 week course. He conducts certification testing of
students in the detection of concealed humans and the odors
of controlled substances. Agent Markle has developed some of
the protocols used to train other instructors; these are
based on the knowledge and experience he acquired through
working with the CBP Canine Program and his educational
background (e.g., courtroom testimony, report writing).
Matthew B. Devaney, the Research and Development Coordinator
of the CBP Canine Program, developed the current curriculum
for training the detector canines for the CBP - Agent Markle
implements and improves the curriculum. CBP attempts to
follow the best practices included in a list put out by the
Scientific Working Group on Dog and Orthogonal Detector
Guidelines (“SWGDOG”) regarding the maintenance
of records, certification, maintenance training, training
aids, and field practices. Agent Markle believes CBP has
adopted the best practices or has acknowledged them and
recognized they are appropriate. In other words, CBP has been
using the same recommended processes or has modified
processes in response to the recommendations. SWGDOG includes
a lot of experts in the canine field. SWGDOG views a single
blind method as the best practice for comprehensive team
assessments for certifications. Individual Border Patrol
agents have been certified by and/or joined that
organization.

The CBP
Canine Program designed the performance standard score sheet,
i.e., the green sheet. The form has been modified slightly
over the years. The goal of the form is to evaluate the
handler and the canine; it also ensures appropriate testing
is conducted through a multitude of environments as well as
to identify and document any problems that may be occurring.
The first seven columns focus on the handler, the next five
columns focus on the canine, and the next seven columns are
the actual search criteria. Agent Markle summarized the
columns, rituals, and search skills included in the green
sheets. A scale grading system is used to help identify
issues and more accurately describes the performance of a
canine team than a simple pass/fail system.

If a
canine team does not average 3.5, different results may
occur. For example, if it occurs during a certification, the
team fails certification and they must go through remedial
training. If a 3.5 score or above occurs in a bi-weekly
evaluation, the handler is advised of the situation and
should take steps to correct the problem prior to the next
training day; if the handler fails to do so, it will be
apparent in the next training session.

CBP
wants well-trained canine handlers and canines as a point of
pride and to ensure that people's constitutional rights
are not negatively affected by a canine team that is not up
to standard.

Agent
Markle had an opportunity to review the green sheets and the
yellow sheets of Agent Ewing and Niky. After that review,
Agent Markle concluded Agent Ewing and Niky were a very
experienced team, appeared to be very proficient, and worked
very well together. As to the December 14, 2015, incident in
this case, Agent Markle praised Agent Ewing's request for
the traffic to be held. Additionally, Agent Ewing's
testimony indicated to Agent Markle that he knew Niky was
alerting to the vehicle - specifically, to the rear of the
vehicle, but without any more precision.

Canines
may not indicate for a variety of reasons: limited space, an
overwhelming odor (the odor is everywhere), or a moving
source (traffic). Even if a canine is trained with a passive
alert, the canine may use an active indicator if it is
frustrated; i.e., unable to passively indicate.

CBP
uses a single blind method of evaluation. In other words, the
instructor knows where the items are hidden, while the canine
handler and the canine do not. This mitigates a canine
possibly reading cues from the canine handler (e.g.,
providing hints as to where the handler desires a canine to
indicate). A comprehensive assessment of both the canine
handler and the canine are being conducted - the evaluator
needs to know the location or absence of the training aid to
effectively complete that evaluation. It is not possible to
use a double blind method of evaluation if a complete team
assessment is being conducted; Agent Markle clarified this on
cross-examination: the use of a video would make the use of a
double blind evaluation method possible, but it would not be
effective. If a double blind method of evaluation was used,
rewards to the canine might be inappropriately withheld
(i.e., no one present would be aware a reward should be
given), which could cause the canine to become frustrated or
confused with a diminished performance as the result. If CBP
were only doing an odor recognition assessment, a double
blind method could be used.

Agent
Markle is not aware that there is a consensus in the field of
detector dogs across the country that a certification should
be double blind. During the initial training/certification
process, the CBP Canine Program utilizes a barrier that
prevents the canine handler and the canine from seeing the
instructor, while allowing the instructor to see the
exercise. Agent Markle distinguished between the initial
training/certification process and the maintenance training.
As stated by Agent Ewing, during the maintenance training,
the instructor stays close enough to evaluate the canine
team. Agent Markle clarified that the instructor varies his
conduct so the canine team cannot cue in or read the
instructor's actions (e.g., walk through the search,
stand back, use a loud tone of voice).

Agent
Markle does not believe he was present at the initial
certification or re-certifications of Agent Ewing and Niky.
He cannot testify as to what the specific instructors did or
how faithful they were in following the precautionary
measures. Agent Markle testified regarding other aspects of
the training curriculum.

The CBP
Canine Program does not train canines to bark with an
indication, but some canines do.

To the
best of his knowledge, a complete unredacted copy of the
curriculum is not provided to defense counsel in San Diego,
California, where he practiced as a Special Assistant United
States Attorney. He believes partially redacted green sheets
are disclosed in San Diego.

When
asked if he had ever heard of any cartel or anyone else using
reverse engineering with unredacted canine records to subvert
CBP's processes, Agent Markle stated he was aware of some
things cartels had done in response to the uses of canines in
the detection area. Agent Markle cited examples of specific
packaging and placements. However, he did state that he
cannot make a direct connection between the cartel practices
and the CBP processes.

During
rebuttal examination, Agent Markle stated a canine exhibits a
specific behavior when it encounters a trained odor. A canine
does not exhibit the same behavior when it encounters other
odors of interest. The training of the ...

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